SZLPG v Minister for Immigration - [2009] FMCA 913

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLPG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 913

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424(2); 424A; 474; pt.8 div.2

SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 (1 May 2009)
Minister for Immigration and Citizenship v SZKTI [2009] HCA 30
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 719
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant:

SZLPG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3085 of 2008

Judgment of:

Emmett FM

Hearing date:

15 September 2009

Date of Last Submission:

15 September 2009

Delivered at:

Sydney

Delivered on:

15 September 2009

REPRESENTATION

Applicant appeared in person assisted by a Malayalam interpreter

Solicitors for the Respondent:

Ms B. Griffin, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3085 of 2008

SZLPG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 October 2008 and handed down that same day.
The applicant claims to be a citizen of India, of Muslim faith and claims to have been politically active in India (“the Applicant”).
The Applicant arrived in Australia on 10 April 2007 having departed legally from Mumbai on a passport issued in his own name and a Subclass 421 Sport visa issued on 5 April 2007.
On 19 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 18 May 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 8 June 2007, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 21 September 2007, the Refugee Review Tribunal affirmed decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of that decision in this Court and, on 12 June 2008, Federal Magistrate Smith remitted the matter to the Refugee Review Tribunal for determination according to law.
On 31 October 2008, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 25 November 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

In his protection visa application the Applicant stated that he feared persecution by members of the Communist Party of India (Marxist) (“the CPI-M”) by reason of his involvement with the Indian Union Muslim League (“IUML”).
The Applicant stated he was heavily involved with the IUML in support of the Muslim minority in Kerala. He claimed he was elected as secretary for the party in the area of Kannur in 2000 and his duties included determining the content of pamphlets, posters and announcements promoting IUML policies. The Applicant claimed his efforts reduced the popularity of the opposing party and increased his profile within the IUML.
The Applicant claimed he received an anonymous phone call warning him against further involvement in the campaign. The Applicant stated that he was told that police would protect him if he paid a bribe. He stated that in the last three years he had been attacked and robbed by CPI-M members. The Applicant stated that his business was “ransacked” by extremists and that, when he filed a case against them, nothing happened and he was told if he stayed in India he would be killed.

The Tribunal’s review and decision

The review and decision of the Tribunal are accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“4. Upon remittal of the applicant's matter to the Tribunal, the applicant provided to the Tribunal a written submission and further supporting documents.[1]
[1]     RD 107-111.
5. The Tribunal, after having requested the applicant's permission to do so[2], sought information from the Department of Foreign Affairs and Trade ("DFAT") in India regarding aspects of the applicant's claims.[3]
[2]     RD 112.
[3]     RD 118-122.
6. The applicant attended a hearing of the Tribunal on 5 September 2008.[4] After the hearing, the Tribunal wrote to the applicant seeking his comment on information that would be the reason, or part of the reason, for affirming the decision under review.[5] The applicant responded to the Tribunal by letter dated 29 September 2008.[6] He also provided further material, received by the Tribunal on 29 October 2008.[7]
[4]     RD 123.
[5]     RD 129-130.
[6]     RD 131-2.
[7]     RD 135-140.
7. In a decision dated 31 October 2008, the Tribunal affirmed the delegate's decision to refuse the applicant a Protection visa, for the following reasons:
7.1 The Tribunal did not find the applicant to be a credible witness on some key aspects of his claims.[8]
7.2 It referred to the enquiries made by DFAT and the applicant's response to its letter seeking comment from him regarding that information. It noted that the applicant did not respond to the information that the party had not heard of him, although it noted that the applicant disagreed with some of the information received by the Tribunal.[9]
7.3 The Tribunal did not accept that the applicant had held any position in the IUML Kannur at any time between 2000 and 2007, nor did it accept that the applicant was the target of persecution due to any activities engaged in by him in the IUML or for any political or religious reasons, nor that he had reported any incidents to the police and been refused protection.[10]
7.4 As the Tribunal was not satisfied that the applicant had been involved in the IUML as claimed, it did not accept that the statements in the supporting documents purportedly from the IUML Kannur provided to the first Tribunal were true.[11]
7.5 The Tribunal therefore did not accept the applicant's shop had been damaged or that his family home had been damaged or sold due to any problems with the CPI(M) or due to his religion, political opinion or imputed political opinion. It also did not accept that his father's death resulted from any visit by CPI(M) members to the applicant's home in 2006 or that the photographs provided by the applicant depicted damage caused by the CPI(M).[12]
7.6 The Tribunal therefore did not accept that the applicant had reported any incident to police or that the police refused to assist him unless he paid for protection.[13]
8. For the above reasons, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason.”
[8] RD 155 at [54].
[9]     RD 156 at [55]-[57].
[10] RD 156 at [58].
[11] RD 156-7 at [60].
[12]    RD 156-7 at [59], [61], [62].
[13] RD 157 at [62].

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
On 4 February 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon and any further evidence by way of affidavit and submissions in support.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice.
At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an amended application filed on 4 March 2009 as follows:
“1. The Tribunal member ought to have held that on the evidence before the Tribunal it was open to the member to find that the applicant was a Refugee within the meaning of Act and Tribunal member was minded to so find if it could obtain corroborative evidence from the IUML office in Kannur, but contacted the wrong person. None of us had heard of Mr. Mahmud. Mr Abdul Khader Moulavi has been the secretary of the IUML in Kannur since 2002. In such circumstances the Tribunal erred in that:
a. it failed to address the residual question as to how it should hold in the event that its finding that the applicant was not at risk of persecution was wrong, and
b. it failed to properly apply the consideration that the applicants for refugee status ought to be given the benefit of the doubt in circumstances where Tribunal entertained the possibility that the applicant claims are plausible which was the case here.”
The grounds were interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support the grounds and in support of the application generally.
The Applicant’s grounds appear to make three complaints.
The first complaint is that the Tribunal contacted the wrong person at the IUML office in Kannur and who gave information to the Tribunal that the Applicant was not known to them. For the Reasons below, such a complaint does not demonstrate jurisdictional error on the part of the Tribunal.
On 8 September 2008, the Tribunal wrote to the Applicant pursuant to s.424A of the Act giving the Applicant information received by it upon enquiry in India regarding the Applicant’s involvement in the IUML. The Tribunal’s letter informed the Applicant that the secretary of the IUML in Kannur, Mr Mahmud, advised that he had never heard of the Applicant and that he had checked with colleagues who had worked with the IUML since 2000 and none of them had heard of the Applicant either. The Tribunal informed the Applicant that Mr Mahmud has been the secretary of the IUML in Kannur since 2004 and that Mr Mahmud had informed the Tribunal that Mr Abdul Khader was the secretary between 2002 and 2006.
The Tribunal informed the Applicant that he had told the Tribunal at the hearing on 5 September 2008 that he had been secretary since 2006 and joint secretary from 2002 to 2006. The Tribunal also informed the Applicant that when the Tribunal had asked the Applicant who is the current secretary, the Applicant had responded that after he left it was Abdul Jaleel but that he did not have the latest details.
The Tribunal’s letter explained to the Applicant the relevance of this information and invited the Applicant to respond.
The information contained in the Tribunal’s s.424A letter was received by it upon enquiry made with the consent of the Applicant to the IUML in India. Such information was not “additional information” sought by the Tribunal as it was information sought for the first time from the Department of Foreign Affairs and Trade, Canberra, in relation to the IUML. In the circumstances, s.424(2) of the Act was not engaged (SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 (1 May 2009) at [123]; Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 at [4], [45]-[46]).
On 2 October 2008, the Applicant responded to the Tribunal’s letter stating that he did not accept the information given to him by the Tribunal about Mr Mahmud. The Tribunal noted, however, that the Applicant did not respond to the concern expressed in its s.424A letter as to why the information received by the Tribunal from the IUML indicated that the Applicant was unknown to them and that he had never been secretary.
The Tribunal rejected the Applicant’s claims of ever having held any position on the committee of the IUML at Kannur at any time since 2000 until he left for Australia in 2007.
That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave. The Applicant’s complaint that the Tribunal contacted the wrong person is no more than a disagreement with the Tribunal’s finding. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).
The second and third complaints made in the grounds of the amended application are dealt with together below. Both appear to make a similar complaint differently expressed.
To the extent that the grounds of the Applicant’s application assert that the Tribunal failed “to address the residual question as to how it should hold in the event that its finding that the Applicant was not at risk of persecution was wrong” and that the Tribunal failed to give the Applicant the benefit of the doubt “in circumstances where Tribunal entertained the possibility that the applicant claims are plausible which was the case here” are misconceived. A fair reading of the Tribunal’s decision record makes clear that the Tribunal did not entertain the possibility that the Applicant’s claims were plausible.
The Tribunal referred in the findings and reasons section of its decision record that the benefit of the doubt should be given to asylum seekers who are generally credible but who are unable to substantiate all of their claims. The Tribunal also noted that it must keep in mind that if it were to make an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. In support of that proposition, the Tribunal correctly referred to Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 719 at 220 where the Full Court of the Federal Court of Australia applied the principles enunciated by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576.
As stated above in these Reasons, the Tribunal was not obliged to accept the Applicant’s responses to the concerns put by the Tribunal to the Applicant about this information. Moreover, the Applicant did not respond at all to the Tribunal’s reference to information before it that the IUML in Kannur had not heard of the Applicant.
The Tribunal did not find the Applicant to be a credible witness in certain key aspects of his claims. In particular, the Tribunal found in accordance with information provided to it by IUML in Kannur that the Applicant was not known to the party and had never held any position on the committee of the party since 2000 until 2007, when he left for Australia.
As the Tribunal was not satisfied that the Applicant was not persecuted because of any activities engaged by him as a member of the IUML, the Tribunal was not satisfied that the Applicant had suffered any Convention-related persecution. The Tribunal concluded that it was not satisfied that the Applicant was at risk of suffering harm in the reasonably foreseeable future if he were to return to India.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern that it had about his evidence in a s.424A Letter and noted the Applicant’s responses. The Tribunal then made findings made on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. The Tribunal reached conclusions based on the findings made by it and to which it applied to correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 15 September 2009